No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.

The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles.  The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial.  On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.

On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.”  The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to other courts have approved of, found no error.

Finally, Nastri challenged the District Court’s application of a sentencing enhancement based on a finding that he committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, pursuant to USSG 2D1.1(b)(15)(E).  The requirements for the “criminal livelihood” enhancement are found in USSG 4B1.3 app. note 2.  The Circuit rejected Nastri’s argument that the District Court should be required to consider financial support he received from his father in determining whether he engaged in the offense conduct as his primary occupation as required by USSG 4B1.3 app. note 2. It also rejected his argument that USSG 4B1.3 app. note 1’s requirement that the criminal acts constituting the offense conduct occur over a substantial period of time is unconstitutionally vague.  The Circuit noted that whether the Guidelines are susceptible to vagueness challenges is an open question in the Second Circuit, but it declined to reach the question, holding instead that as-applied to Nastri’s actual conduct, the provision provided adequate notice that his conduct fell within the statute.